Godinez v. Keisler

MEMORANDUM *** In these consolidated petitions, Jorge Luis Godinez and Margarita A. Godinez, natives and citizens of Mexico, seek review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) decision denying their applications for cancellation of removal, and the BIA’s order denying their motion to reopen proceedings due to ineffective assistance of counsel. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252 . We review for abuse of discretion the denial of a motion to reopen. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857 (9th Cir.2004) (per curiam). We dismiss the petition for review in No. 06-71526, and grant the petition for review in No. 06-73774. We lack jurisdiction to review the discretionary determination that an applicant has failed to show exceptional and extremely unusual hardship to a qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003). We do not consider the petitioners’ contentions regarding continuous physical presence because the hardship determination is dis-positive. See 8 U.S.C. § 1229b(b)(l) (to be eligible for cancellation of removal the applicant must establish continuous physical presence, good moral character and hardship). The BIA abused its discretion in denying the motion to reopen, because petitioners included evidence of their substantial compliance with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). First, petitioners provided a detailed affidavit, a payment receipt, and an attorney-client fee agreement to substantiate their representation by prior counsel. Second, they submitted a copy of a complaint filed with the California state bar association. Third, they submitted a copy of certified mail receipts indicating that their counsel received a copy of the state bar complaint. See Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir.2000) (discussing Lozada requirements); compare Reyes v. Ashcroft, 358 F.3d 592, 598 (9th Cir. 2004) (undated letter to prior counsel in *557 sufficient to meet notice and opportunity to respond requirements). The BIA also abused its discretion by applying the wrong standard to determine whether the performance of prior counsel resulted in prejudice. The BIA required petitioners to demonstrate eligibility for cancellation of removal, when they need only demonstrate that the deficient performance by counsel may have affected the outcome of proceedings. See Maravilla Maravilla, 381 F.3d at 858-59 (BIA abused its discretion when it determined that counsel’s performance did not result in prejudice by directly adjudging whether the petitioners would win or lose their claim). Accordingly, we remand for the BIA to determine, under the correct standard, whether petitioners were prejudiced by prior counsel’s conduct. PETITION FOR REVIEW in 06-71526 DISMISSED. PETITION FOR REVIEW in 06-73774 GRANTED; REMANDED. RAWLINSON, Circuit Judge, dissents. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.